Opinion
May Term, 1899.
Judgment and order affirmed with costs.
The single question was whether or not the car stopped. If it stopped as the plaintiff claims, it should not have started again till she was quite clear from it. And as there was a direct conflict as to the issue thus presented, clear and positive testimony being given both ways, the question was one properly to be submitted to the jury. In some respects this case resembles that of Martin v. Second Avenue R.R. Company ( 3 App. Div. 448), wherein it appeared, as stated by the head note, "that the plaintiff, who was the only witness in her own favor, and was in effect contradicted by a number of witnesses for the defendant, testified that while she was about to leave a car, which was at rest, it suddenly started, and she was thrown from the platform to the ground; that she did not see what started the car, nor could she state how far it moved." It was held that the case was properly submitted to the jury, and that its verdict must stand, the presiding justice, in the course of his opinion, saying: "It is urged upon the part of the appellant that the only person who testified that the car moved or jerked says that she did not see what started it. The car having stopped, and the passengers being called upon to alight, if, in the act of alighting, the plaintiff was thrown from the car by a jerk of the car, it was necessary for the appellant to prove that it was not responsible for the happening of that movement in order to absolve itself from liability. It was not incumbent upon the plaintiff to say what caused the jerk. It was negligence upon the part of the appellant to allow the car to move while the passengers were in the act of alighting." In the present case the plaintiff is supported by another witness, who, although he uses the words, "I think I watched her getting off the car," states the manner in which she put her foot down on the step, and testifies that the car gave a jerk, as the result of which the plaintiff fell against the elevated pillar Although there were, exclusive of the conductor and gripman of the car, three passengers who testified in behalf of the defendant — and their testimony must be regarded as disinterested — it will be noted that their versions of how the accident occurred cannot be harmonized. Thus one of the passengers testified that the plaintiff, while facing south, jumped off the car, another that she fell off "because she did not wait for the conductor to stop," and the third, that she stepped down as the car was coming to a standstill. The evidence shows that the car did not move more than two or three feet from the place where the plaintiff fell or was thrown from the car; but it is not made clear whether the accident was caused, as the plaintiff claims, by the car stopping and then going ahead with a jerk, or whether, as may be inferred, the plaintiff was thrown from the side running board as she was about to step down, owing to a sudden application of the brake. If we exclude the testimony of the defendant's witness, who said that the plaintiff jumped from the car, which statement is at a variance with the testimony given by all the other witnesses, there still remains a direct conflict as to the manner in which the injuries were received. According to the plaintiff and her witness, the car had stopped and then had started up again with a jerk, while the testimony of two of the passengers produced as witnesses for the defendant was that the plaintiff fell or stepped off the car before it had come to a full stop. We think that there was not such a preponderance of evidence as would have justified a dismissal of the complaint or a direction for the defendant, nor such as would justify our setting aside the verdict. This case well illustrates the difficulty which is often to be found in accident cases, where different minds may properly and naturally differ as to the inferences to be drawn from the testimony, and different conclusions may be reached as to the weight of the evidence, and whether or not it preponderates in favor of one party or the other. The jury has been constituted for the purpose of determing just such cases, and it is only where we can see that from passion, prejudice or partiality the jury has gone wrong, or else that it has accepted unsatisfactory testimony, as of a single, uncorroborated witness in lieu of more complete evidence adduced, which is fortified by the probabilities and circumstances surrounding the case, that we are justified in interfering with the verdict. In the present case we do not think that the elements appear which would permit us to conclude that the jury was influenced by other than honest convictions, reached after considering the force of the evidence presented by the respective parties. The damages awarded, which were not excessive, do not indicate that the jury was affected by passion or prejudice, and the case is evidently one where different minds might naturally reach different conclusions. As said, therefore, we do not think that we would be justified in interfering with the verdict, and the judgment and order must be accordingly affirmed, with costs. Van Brunt, P.J., Barrett, Rumsey and Patterson, JJ., concurred.